Can an experienced lawyer who understands the case, the client objectives and strategy, and possessing technical analysis skills or working collaboratively with someone who has them (an “Iterative Legal Analysis and Sampling” (ILAS) approach), find the relevant documents in litigation or an investigation, faster, less expensively and as effectively as, a team of contract review lawyers working at much lower hourly rates conducting ‘linear’ document review.

It is important for organizations to routinely dispose of unneeded documents and data – keeping useless data is expensive and increases the risks and costs associated with currently unknown legal matters that may arise in the future. However, engaging in routine deletion runs the risk that a litigation preservation obligation is present but unknown by those responsible for the routine deletion, thereby raising the question as to the likelihood of sanctions for spoliation.

The Federal Rules of Civil Procedure (“FRCP”) contain the rules pertaining to discovery in federal litigation
that drive most lawyer behavior in the land of e-discovery – and the rules are a ‘changing! This article, the
first of a three-part series, will address the potential effects of the FRCP 37 proposed sanctions amendments
on records management and e-discovery practices.

This article, the second in the series, discusses the proposed FRCP amendments relating to case management, cooperation
and proportionality. Specifically, this article addresses the proposals to amend FRCP 26(b)(1), which pertains to the
scope of discovery in federal litigation, the new pro- posed revisions to FRCP 16 regarding scheduling orders emanating
from FRCP 26(f) “meet and confer” conferences, Rule 34 discovery requests and objections, and a new proposed FRCP 26(c) rules cost-shifting.

Corporate documents placed in the care of third parties must be accounted for. Documents neither destroyed nor returned
when a case is closed represent ongoing exposure. Three steps can help to ensurethat the final case closing will be routine
and easily managed:

For the last several years, in-house counsel have been bombarded with a seemingly endless assault of ads, articles,
seminars, webinars, emails, blogs, podcasts and tweets – all proclaiming to have effective technical solutions for
quelling the rising costs of dealing with the discovery of electronically stored information (ESI). To be sure, certain
technologies can have a dramatic positive impact on reducing the cost of handling ESI, often cutting the cost to review
the data, the most expensive part of ESI discovery, by over 90%.

Organizations are drowning in a rising tide of unnecessarily retained electronic data,1 caused by the ease with which users
can accumulate and hoard data, and a fear that sanctions might be imposed if the organizations clean house. The consequences?
Inflated data storage and management costs, plus greatly inflated legal review fees in the event of litigation. All without
any clear understanding as to what records and information are being retained or why.

Legacy data (backup tapes, file shares, PSTs, and other storage media) when kept indefinitely has no value or purpose.
But it can create expensive havoc and costs that can be avoided if the data is properly managed, and destroyed when
business and legal retention requirements expire.

A recent study1 published by the Ediscovery Institute based on a survey of leading ediscovery providers (Deduping Survey)
shows that, despite the technical ability to suppress or consolidate duplicates within an electronic document population,
chances are about 50:50 that your outside counsel fails to take advantage of this technology, opting instead to double bill
for reviewing unnecessary duplicates for privilege, confidentiality and relevance. The study shows that, on average, law firms
that do not consolidate duplicates across custodians are reviewing 27 percent more records than needed, and in some cases 60 percent
or more, raising serious ethical issues involving conflicts of interest and technical competency.

Just as today’s litigators struggle with searching for relevant documents to respond to an opponent’s discovery request,
fictional adversaries that existed “[a] long time ago in a galaxy far, far away” had similar trouble locating missing data
tapes on a planet-sized battleship. Searching for lost items is a difficult task—especially if your search team doesn’t know
what to look for.

If you send an e-mail to three people, your system keeps one copy, with all three people listed in the “To” field. If you need to see
all your e-mails to just one of those people, you search for that name. It’s still just one copy. Indeed, it would be silly to have
multiple copies. The same holds true for document discovery repositories, yet a recent survey suggests that lawyers still don’t “get it,”
and often insist on keeping multiple, unnecessary copies.

A blue-ribbon group of legal scholars, including a U.S. Supreme Court justice, law professors, and attorneys in both corporate
and private practice met recently to discuss growing concerns around electronic discovery (e-discovery). Exorbitant costs and
massive amounts of data are having a negative impact on the society and the practice of law.

Pushed by cost, time, regulatory and ethical considerations to embrace change sooner rather than later, law firms and
clients are increasingly experiencing the impact of electronic discovery technologies. Staying ahead of the curve on these
offerings is key to the effective management of discovery, providing the most reliable and cost effective case management
for clients.

Meaningful amendments to the Federal Rules of Civil Procedure governing discovery of electronically stored information
(“ESI”) were approved on September 20, 2005 by the U.S. Judicial Conference as recommended by the
Conference’s Standing Committee on Rules of Practice and Procedure. The amendments will next be forwarded to the
U.S. Supreme Court and, if promulgated by the Court by May 1, 2006, will take effect on December 1, 2006, unless Congress
intervenes.